When James Flemming heard his boss's anxious voice on the answering machine saying he had something urgent to talk about, he stopped listening to his messages and immediately picked up the phone to call work. It was Monday morning, September 17, and Flemming worried that the Loring Bar and Cafe, where he had been a waiter for the past six years, might have been broken into or vandalized. Less than a week before, he had been asked to work an extra shift as a sort of backup security guard because Jason McLean, owner of the popular spot, had feared that the place's ethnically diverse crowd might erupt in violence following the terrorist attacks in New York and Washington.
Flemming says that McLean answered in the first couple of rings, but his boss's voice was muffled. "What? I can't hear what you're saying," the confused waiter said. "Could you say that again?"
McLean repeated what he had said. "You're terminated," he said flatly. "Come in and get your stuff." If Flemming wanted to know why he was fired, McLean continued, he should submit a written request for an explanation and a written response would be given to him.
Flemming was stunned. He and McLean had had their problems in the past, but nothing recent. He paced around the house for a bit trying to piece together the events of the past several weeks when the phone rang again. It was a friend who also worked at the café. He too had been fired.
Throughout the day more calls came in. By nightfall it was clear that 13 staffers from the Loring Bar and Cafe had been fired that morning. Four of those who lost their jobs were relatively recent hires. But nine had worked for McLean for years; one woman had started bartending there just months after the place opened 14 years ago. Almost all of them had learned of their firing via their answering machines, and, like Flemming, most were told they could submit a written request for a written explanation.
"I've been around [McLean] for years and I know he's capable of making these kinds of decisions even if it means terminating close friends," says Flemming. "But this seems particularly harsh. No one knew this was coming, and it's a really terrible time in the world right now with everything going on in New York. And the economy is really bad. It's horrible."
In the wake of the firings, McClean closed the bar and restaurant for two days. When Flemming and the other fired workers went to pick up their last paychecks on the 17th and 18th, they noted signs on the door telling customers that the place was closed for repairs because of "leaks."
Flemming was among those who asked for an explanation. "The business of the Loring Cafe/Bar has been in jeopardy for sometime," the handwritten note he got from McLean starts out. "We have been unable to show a profit for a couple of years. Especially this year, as you can plainly see, there has been a sharp decline in the café's sales." McLean wrote that he had long been concerned about liquor costs and had hired "investigative agencies" to observe employees on the job. The investigators, he claimed, noticed that money that was supposed to make it to the cash drawer didn't always get there.
Flemming wasn't a bartender, and he says he was not accused of stealing himself. But he was still fired. "I have held the belief that such widespread corruption within the business is perpetuated with some awareness by even those who are not directly involved," McLean wrote. "It is my belief that you participated in the code of silence that I believe permeates the senior ranks of Loring personnel. By terminating your employment, I hope to stem the tide of dysfunction of this business and get it back on the up and up."
Flemming is quick to acknowledge that bartenders in lots of restaurants are known to make sure good customers get the occasional free drink. But he says he knew nothing about any theft going on at the Loring and that prior to his firing McLean never asked him about it. And while it's true that business has been slow, he doubts that that is the reason why he and the others lost their jobs.
He is one of a number of former and current employees who charge that McLean wanted to clean house in order to get rid of several longtime employees. At least seven of the fired workers were among the last of those who worked for McLean during an employee campaign to unionize in 1997 and 1998. "I think he wanted to get rid of us so he wouldn't have any opposition to some of the new policies he wants to start," Flemming says. "The funny thing is that I don't think anyone would have honestly tried to organize again after all we went through the first time. But this was his preemptive strike against opposition."
If Flemming's recollection is right, two days before Christmas 1997, McLean distributed a memo outlining a plan to begin charging all customers a mandatory 17 percent tip. That "service compris," as McLean called it, would then be divided equally among employees. The idea, McLean argued, would ensure equal pay for all employees. (At the Loring, as is the case with most restaurants and bars, waiters and bartenders have traditionally made minimum wage plus tips, while the kitchen staff get no tips but a higher hourly rate.) McLean's plan would have meant that everyone received the same hourly pay and a portion of the tips on top of that. This would have meant a pay raise for kitchen staff, but it was a substantial pay cut for waiters and bartenders, who earn the bulk of their wages from tips; and they objected to the change.
But there was more to it than that, says Blake Harwell, who was a cook at the Loring at the time of the dispute. In his December memo, McLean estimated how much he thought would end up in the tip pools, and then threw out a few ideas about new hourly wages. But when staffers added up the numbers, Harwell says, they became convinced that there would be quite a bit of money from the 17 percent fee left over even after the wage increases and the tip split. "A bunch of us got together and wrote him a letter saying we were opposed to the idea and that it wasn't fair," Harwell recalls.
McLean wouldn't budge, though. So Harwell, Flemming, and about ten other employees--including several of those who were recently fired--contacted the Hotel Employees and Restaurant Employees Union Local 17 for help. "We knew we couldn't afford a lawyer, so we thought maybe the union could help us," says Harwell, who now works as a research analyst for Local 17.
Months of bitter protests followed (see "When Poetry Hurts," August 12, 1998). After more than half of the employees at the Loring signed cards expressing their desire to unionize, union organizers claimed, McLean began campaigning to defeat the movement. Shortly before the March 4, 1998 vote on whether to allow the union in, McLean promised to drop the service-charge idea for good. (The National Labor Relations Board would later broker a settlement in response to employees' accusations that McLean had engaged in union-busting.) But by then many people sympathetic to the union effort had quit. Those who remained voted to reject union representation by a two-to-one margin. Several pro-union employees stayed on--at least until a couple of weeks ago.
Jason McLean dismisses claims by Flemming, Harwell, and others that the firings have anything to do with the old controversy. The way he sees it, they are trying to turn a sound business decision into a conspiracy. "It's true I let 13 go," McLean says. "And it's true that I called them on the phone to do it. But I can assure you that it's untrue that the past had anything to do with it. I have to do the things I have to do--unpleasant as they may be--to protect my business."
In either case, things are changing for the folks who weren't fired, says one current employee who agreed to talk under the condition of anonymity. Workers have been asked to sign an addendum to their employee handbook outlining new policies. Tip pooling is not among the changes, the employee says, but waiters and bartenders must now pay the two percent processing fee charged by credit card companies for each credit card tip they receive. Employees will no longer receive a free drink after their shifts or a free meal while they're working. Some people got new duties, as well: It is now the responsibility of waiters and bartenders to sweep and mop the floors before they go home at night. (McLean would not comment about recent changes in staff policy.)
"It's really tense around here right now," the employee says. "Everyone is wondering why they didn't get fired and whether they'll be next. We're all getting these new employee handbooks that have kids' drawings in there with descriptions like, 'Do smile and greet customers.' 'Don't carry a pepper mill under your arm.' 'Don't whine--whiners will get noticed and replaced.' It's really hard to work here right now, but this is my job. It's not like I can just walk out the door and quit. I've got bills to pay."